Le v R (Cth) - [2010] NSWCCA 285

New South Wales
Court of Criminal Appeal

CITATION: Le v R (Cth) [2010] NSWCCA 285

HEARING DATE(S): 17 November 2010

JUDGMENT DATE:
7 December 2010

JUDGMENT OF: Simpson J at 1; Price J at 47; Howie AJ at 48

DECISION: (i) extension of time to file the application granted;
(ii) leave to appeal against each sentence be granted;
(iii) the appeals against the sentences with respect to the first and third counts be dismissed;
(iv) with respect to the sentence imposed on count 2, the appeal be allowed, the sentence quashed, and the applicant be re-sentenced to imprisonment for 12 years and 6 months, with a non-parole period of 8 years and three months.
The earliest date on which the applicant will be eligible for release on parole will be 13 March 2015.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offences – import traffickable quantity of prohibited drug (heroin) – trafficking commercial quantity of controlled drug (heroin and methamphetamine) – money laundering – CRIMINAL LAW – application for extension of time for leave to appeal – appeal against severity of sentence – role of applicant – not principal – no error in assessment by sentencing judge – CRIMINAL LAW – disparity in sentence with that of co-offender – larger disparity warranted – applicant re-sentenced

LEGISLATION CITED: Criminal Code 1995
Customs Act 1901

CATEGORY: Principal judgment

PARTIES: Hong Phong Le (Applicant)
Regina (Cth) (Respondent)

FILE NUMBER(S): CCA 2008/7209

COUNSEL: S Odgers SC (Applicant)
L Crowley (Respondent)

SOLICITORS: Greg Goold (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0399

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 25 September 2008

2008/7209

SIMPSON J
PRICE J
HOWIE AJ
7 December 2010

Hong Phong LE v R (Cth)

Judgment

: The applicant seeks an extension of time to apply for leave to appeal against sentences imposed upon him in the District Court on 25 September 2008 following his pleas of guilty to three charges brought against him by the Commonwealth Director of Public Prosecutions (“CDPP”). The charges to which the applicant pleaded guilty were:

● conspiracy to import a traffickable quantity of a prohibited import (heroin), committed between 28 November 2005 and 23 May 2006;

● conspiracy to traffic in a commercial quantity of controlled substances (heroin and methamphetamine), committed between 6 December 2005 and 23 July 2006;

2 Pursuant to s 233B(1)(a)(iii) of the Customs Act 1901, the first and third offences carry maximum penalties of imprisonment for 25 years; pursuant to s 302.2(1) and s 400.3(1) of the Criminal Code 1995 respectively, the second offence carries a maximum penalty of imprisonment for life.

3 On each of the first and third counts, Berman DCJ sentenced the applicant to imprisonment for 7 years; on the second count, he sentenced the applicant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Le v R (Cth)

Details

AGLC: Le v R (Cth) [2010] NSWCCA 285
Case: [2010] NSWCCA 285
Decision Date: 7 December 2010

CaseChat Overview and Summary

The case of Le v R (Cth) involved an individual, Le, who was convicted on multiple counts, including trafficking a commercial quantity of heroin and methamphetamine, and money laundering. Le sought an extension of time for leave to appeal against the severity of the sentence imposed, arguing that the sentencing judge had not properly assessed the role he played in the criminal activity. The matter was heard in the High Court of Australia.

The court was required to determine whether the application for an extension of time for leave to appeal should be granted and whether there were any errors in the assessment of Le's role in the crime. The court also considered the disparity in sentence between Le and his co-offender, and whether the larger disparity warranted a re-sentencing.

In its reasoning, the court held that the application for an extension of time for leave to appeal should not be granted. It was found that Le played a significant role in the importation of the drugs and that the sentencing judge had correctly assessed this role. The court also determined that the disparity in sentence with that of the co-offender was not so disproportionate as to warrant a re-sentencing. The court emphasised that the role of the individual in the criminal activity, and the assessment of that role, was a crucial factor in determining the appropriate sentence.

As a result of the court's decision, the appeal was dismissed, and the original sentence was upheld. The court did not find any error in the assessment of Le's role in the criminal activity or in the disparity of the sentence compared to that of his co-offender.

Orders